CACI 4302 Termination for Failure to Pay Rent—Essential Factual Elements

California Civil Jury Instructions CACI

4302 Termination for Failure to Pay Rent—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] [and [name of subtenant], a subtenant of [name of defendant],] no longer [has/have] the right to occupy the property because [name of defendant] has failed to pay the rent. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of plaintiff] [owns/leases] the property;

2.That [name of plaintiff] [rented/subleased] the property to [name of defendant];

3.That under the [lease/rental agreement/sublease], [name of defendant] was required to pay rent in the amount of $[specify amount] per [specify period, e.g., month];

4.That [name of plaintiff] properly gave [name of defendant] three days’ written notice to pay the rent or vacate the property;

5.That as of [date of three-day notice], at least the amount stated in the three-day notice was due;

6.That [name of defendant] did not pay the amount stated in the notice within three days after [service/receipt] of the notice; and

7.That [name of defendant] [or subtenant [name of subtenant]] is still occupying the property.

New August 2007; Revised June 2011, December 2011, December 2013, May 2021

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Directions for Use

Modify this instruction as necessary for rent due on a residential tenancy between March 1, 2020, and June 30, 2021, including, but not limited to, substitution of the term “fifteen business days” wherever the term “three days” appears in the essential factual elements. (See COVID-19 Tenant Relief Act, Code Civ. Proc., § 1179.01 et seq.; Stats. 2021, ch. 2 (Sen. Bill 91), Code Civ. Proc., § 1179.02.)

Include the bracketed references to a subtenancy in the opening paragraph and in element 7 if persons other than the tenant-defendant are occupying the premises.

If the plaintiff is the landlord or owner, select “owns” in element 1, “rented” in element 2, and either “lease” or “rental agreement” in element 3. Commercial documents are usually called “leases” while residential documents are often called “rental agreements.” Select the term that is used on the written document. If the plaintiff is a tenant seeking to recover possession from a subtenant, select “leases” in element 1, “subleased” in element 2, and “sublease” in element 3. (Code Civ. Proc., § 1161(3).)

Defective service may be waived if defendant admits receipt of notice. (See Valov v. Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546].) However, if the fact of service is contested, compliance with the statutory requirements must be shown. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425 [123 Cal.Rptr.3d 816].) Therefore, this instruction does not provide an option for the jury to determine whether or not defective service was waived if there was actual receipt.

If a commercial lease requires service by a particular method, actual receipt by the tenant will not cure the landlord’s failure to comply with the service requirements of the lease. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744, 752 [110 Cal.Rptr.3d 833].) Whether the same rule applies to a residential lease that specifies a method of service has not yet been decided.

If the lease specifies a time period for notice other than the three-day period, substitute that time period in elements 4, 5, and 6, provided that it is not less than three days.

There is a conflict in the case law with respect to when the three-day period begins if substituted service is used. Compare Davidson v. Quinn (1982) 138 Cal.App.3d Supp. 9, 14 [188 Cal.Rptr. 421] [tenant must be given three days to pay, so period does not begin until actual notice is received] with Walters v. Meyers (1990) 226 Cal.App.3d Supp. 15, 19–20 [277 Cal.Rptr. 316] [notice is effective when posted and mailed]. This conflict is accounted for in element 6.

See CACI No. 4303, Sufficiency and Service of Notice of Termination for Failure to Pay Rent, for an instruction regarding proper notice.

Sources and Authority

Unlawful Detainer for Tenant’s Default in Rent Payments. Code of Civil Procedure section 1161(2).

COVID-19 Tenant Relief Act. Code of Civil Procedure section 1179.01 et seq.

Senate Bill 91 (Stats. 2021, ch. 2). Code of Civil Procedure section 1179.02 et seq.

Tenant Protection Act of 2019. Civil Code section 1946.2.

Conversion to Civil Action if Possession No Longer at Issue. Civil Code section 1952.3(a).

“[M]ere failure of a tenant to quit the premises during the three-day notice period does not necessarily justify an unlawful detainer action. If a tenant vacates the premises and surrenders possession to the landlord prior to the complaint being filed, then no action for unlawful detainer will lie even though the premises were not surrendered during the notice period. This is true because the purpose of an unlawful detainer action is to recover possession of the premises for the landlord. Since an action in unlawful detainer involves a forfeiture of the tenant’s right to possession, one of the matters that must be pleaded and proved for unlawful detainer is that the tenant remains in possession of the premises. Obviously this cannot be established where the tenant has surrendered the premises to landlord prior to the filing of the complaint. In such a situation the landlord’s remedy is an action for damages and rent.” (Briggs v. Electronic Memories & Magnetics Corp. (1975) 53 Cal.App.3d 900, 905–906 [126 Cal.Rptr. 34], footnote and internal citations omitted.)

“Proper service on the lessee of a valid three-day notice to pay rent or quit is an essential prerequisite to a judgment declaring a lessor’s right to possession under section 1161, subdivision 2. A lessor must allege and prove proper service of the requisite notice. Absent evidence the requisite notice was properly served pursuant to section 1162, no judgment for possession can be obtained.” (Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 513 [65 Cal.Rptr.2d 457], internal citations omitted.)

“Section 1162 does not authorize service of a three-day notice to pay rent or quit by mail delivery alone, certified or otherwise. It provides for service by: personal delivery; leaving a copy with a person of suitable age and discretion at the renter’s residence or usual place of business and sending a copy through the mail to the tenant’s residence; or posting and delivery of a copy to a person there residing, if one can be found, and sending a copy through the mail. Strict compliance with the statute is required.” (Liebovich, supra, 56 Cal.App.4th at p. 516, original italics, internal citations omitted.)

“In the cases discussed … , a finding of proper service turned on a party’s acknowledgment or admission the notice in question was in fact received. In the present case, defendant denied, in his answer and at trial, that he had ever received the three-day notice. Because there was no admission of receipt in this case, service by certified mail did not establish or amount to personal delivery. Further, there was no evidence of compliance with any of the three methods of service of a three-day notice to pay rent or quit provided in [Code of Civil Procedure] section 1162. Therefore, the judgment must be reversed.” (Liebovich, supra, 56 Cal.App.4th at p. 518.)

“[Code of Civil Procedure section 1162 specifies] three ways in which service of the three-day notice may be effected on a residential tenant: … . As explained in Liebovich, supra, … , ‘[w]hen the fact of service is contested, compliance with one of these methods must be shown or the judgment must be reversed.’ ” (Palm Property Investments, LLC, supra, 194 Cal.App.4th at p. 1425.)

“If the tenant gives up possession of the property after the commencement of an unlawful detainer proceeding, the action becomes an ordinary one for damages.” (Fish Construction Co. v. Moselle Coach Works, Inc. (1983) 148 Cal.App.3d 654, 658 [196 Cal.Rptr. 174].)

Secondary Sources

12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 753, 756, 758
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.35–8.45
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.2, 6.17–6.37
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 5-G, Eviction Controls, ¶¶ 5:224.3, 5:277.1 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For Terminating Tenancy, ¶ 7:96 (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21, 210.22 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5, Unlawful Detainer, 5.07
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant: Eviction Actions, § 333.10 (Matthew Bender)
Miller & Starr, California Real Estate 4th, § 19:200 (Thomson Reuters)